The STATE of Ohio, Appellee, v. DAILY, Appellant, 184 Ohio App. 3d 241

Grady, Judge. {¶ 1} Defendant, Jerry Daily, was indicted on two counts of pandering obscenity involving a minor. R.C. 2907.321(A)(5). Defendant pleaded no contest to one of the counts in exchange for the state’s dismissal of the other. The state recommended imposition of community-control sanctions and that defendant’s sentence run concurrently with any sentence imposed on defendant by a court in Belmont County. The trial court accepted defendant’s no-contest plea and found him guilty. Prior to sentencing, defendant filed a Crim.R. 32.1 motion to withdraw his no-contest plea.

The trial court denied that motion following a hearing. The trial court sentenced defendant to five years of community-control sanctions and classified him as a Tier II sex offender. {¶ 2} Defendant timely appealed to this court from his conviction and sentence.

SECOND ASSIGNMENT OF ERROR {¶ 3} “The trial court erred by removing defendant’s retained counsel and appointed counsel to him, in violation of his Sixth Amendment right to counsel.” {¶ 4} On June 25, 2008, defendant’s retained counsel, Sam Latham, filed a motion requesting a continuance of a pretrial conference scheduled for June 26, 2008, claiming that he needed to undergo extensive medical testing.

The trial court granted that motion and continued the conference to July 10, 2008. {¶ 5} On July 10, 2008, Latham did not appear for the scheduled pretrial conference and again filed a motion requesting a continuance of the final pretrial conference as well as the trial itself because of his continuing health problems. Latham indicated that he had been ill for the past two weeks and was still ill. He also indicated that his medication was “not working as hoped for.” {¶ 6} The trial court did not address Latham’s claims.

Instead, on the same day the motion was filed, the trial court, sua sponte and without any request from either defendant or Latham, and without any notice or opportunity to either to be heard, removed Latham as counsel for defendant and appointed Brad Baldwin to represent defendant, selecting Baldwin from a list of attorneys available for appointment to represent indigent criminal defendants.

By subsequent entry filed on August 14, 2008, the trial court explained that it had removed Latham as counsel for defendant because his personal health issues interfered with his ability to fulfill his obligations and court appearances in defendant’s case. {¶ 7} Defendant appeared for the July 10, 2008 pretrial conference and was told by the court that his trial would be on Tuesday of the following week. When defendant subsequently appeared for trial, Baldwin met him and undertook his representation, advising defendant to accept the state’s plea offer.

At the hearing on his motion to withdraw his plea, defendant testified that Latham, to whom defendant had paid a $5,000 retainer, had from the beginning of his representation told defendant that he had a good case and that they were going to take the case to trial. Defendant also testified that after Baldwin took over defendant’s representation, he continued to consult with Latham, who told him he was being railroaded and that if defendant did not accept the state’s plea offer he would go to jail.

Defendant relied on Latham’s advice and accepted the state’s plea offer. {¶ 8} Procedural due process requires, at a minimum, notice and an opportunity to be heard. Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; State v.

Hoehhansler (1996), 76 Ohio St.3d 455, 668 N.E.2d 457. {¶ 9} Although the court could find from his conduct and the pleadings that Latham filed that he was experiencing health problems that interfered with his ability to represent defendant and to meet scheduled court appearances in this case, on this record the court did not know what Latham’s medical problems were, the extent to which those problems would interfere with Latham’s ability to represent defendant, or how long those medical problems might persist.

More important, if Latham was, in fact, unable to continue his retained representation of defendant, the record does not demonstrate whether defendant wished to retain other counsel. {¶ 10} An element of the Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to select an attorney of his own choosing. United States v. Gonzalez-Lopez (2006), 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409.

The Sixth Amendment right is violated when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he receives. Id. A trial court’s erroneous deprivation of a criminal defendant’s Sixth Amendment right to counsel of his own choosing entitles defendant to a reversal of his conviction because the error is “structural.” Id. {¶ 11} Defendant’s second assignment of error is sustained.

FIRST ASSIGNMENT OF ERROR {¶ 12} “The trial court erred by overruling defendant’s motion to withdraw his plea prior to sentencing because he presented a reasonable basis for the request.” THIRD ASSIGNMENT OF ERROR (¶ 13} “The trial court erred in overruling defendant’s motion to exclude him from the registration requirements of O.R.C. 2950 et seq. in violation of his constitutional rights against ex post facto penalties.” {¶ 14} Our disposition of defendant’s second assignment of error is dispositive of this appeal and renders these assignments of error moot. Accordingly, we need not address them.

App.R. 12(A)(1)(c). {¶ 15} Having sustained defendant’s second assignment of error, we will reverse his conviction and sentence and remand the matter to the trial court for further proceedings consistent with this opinion. Judgment accordingly. Donovan, P.J. and Froelich, J., concur.